Recent Articles

Abstract

On November 14, 2015, the Council of Ministers announced the establishment of the state of emergency upon a country in mourning after the deadliest attacks on French territory since World War II. A few months later, France seems to be sinking into risk management as a paradigm of government, to the detriment of civil liberties. This trend, however, exposed outright by the recent attacks, finds its roots in a culture of counterterrorism - pre-existent to 9/11 - gravitating around the French legal apparatus.

“A French 9/11?”

Since French President François Hollande declared the state of emergency after the terrorist attacks in Paris on November 13, 2015, comparisons with the United States after 9/11 have been greatly exploited by the media. Why France and not Spain, 11-M being the deadliest attack on European soil since the Lockerbie bombing in 1988? France is traditionally depicted as the “Country of Human Rights,” a nickname as symbolic among Western democracies as the reference to the U.S. as the “leader of the free world” during the Cold War.

Moreover, more than ten years after the invasion of Iraq by the Bush administration, France seems to be the new reliable partner of the U.S. in Europe, ousting Britain as the “American Trojan Horse” on the Old Continent. France has been leading an active foreign policy abroad, often criticizing the lack of boldness of its main European partner, Germany. Hollande’s active foreign policy directed against international terrorist networks in Mali (Operation Barkhane) and Iraq (Operation Chammal) has been referred to as the cause for the terrorist attacks by ISIS fighters in the Bataclan concert hall.

The blurring lines between foreign and domestic policy is not without reference to the 9/11 attacks, explained by Al Qaeda as a consequence of American foreign policy in the Middle East in the early 2000s.

The comparison between 9/11 and the 2015 Paris attacks corroborates the idea of an internationalization of insecurity and a global fight against terrorism, a national security discourse that has invaded the political space for more than a decade.

Terrorism: Building the Threat

According to French intellectual Pierre Bourdieu, the state is defined by its capacity to create patterns of thought. The Copenhagen School describes this political process as “securitization:” in international relations, an issue becomes a security issue not because it constitutes an objective threat to the State (or another referent object), but rather because an actor has defined something as an existential threat to some object’s survival. A relevant illustration of this process would be President G.W. Bush’s first use of the phrase “war on terror” in his address to a joint session of Congress on September 20, 2001, “GWOT”1 having been integrated in worldwide political speech and used to justify military interventions and restrictions of civil liberties all over the Western world for a decade. The concept of terrorism as a whole enabled a symbolic construct of a homogenous threat, while the reality is a lot more complex and does not allow for the unification of political violence under a single label. The creation of a security continuum between an outside and an internal threat – a new political discourse based on an old phenomenon – enables the State to base its security strategy and policies on the “precautionary principle” defined by Hans Jonas.2 Following the shift in the discourse on security, a move can be observed toward a mindset of risk management as a paradigm for government, realizing Ulrich Beck’s prophetic description of the “risk society as a catastrophic society” in which “the exceptional condition threatens to become the norm.”3

Has the “Country of Human Rights” Lost its Way?

On January 7, 2015, an Islamic-extremist terrorist attack was launched against the satirical magazine Charlie Hebdo, followed by two other attacks in Paris and its suburbs. 17 people were killed in these shootings, leading to the activation of the Plan Vigipirate, France’s national security alert system, which put the Ile-de-France region under “attack alert.” Similar to the U.S. Homeland Security Advisor System, the Plan Vigipirate was created in 1978 by President Giscard d’Estaing, and was first activated during the 1991 Gulf War. In addition to the security plan covering more than 300 safety measures, such as the activation of crisis cells in ministries and prefectures or the prohibition of parking near schools, President François Hollande launched Operation Sentinelle. In the framework of this operation of the armed forces, 10,400 soldiers were deployed on the French territory, as well as 5,000 police officers answering to the Ministry of the Interior. The number of French soldiers deployed on the national territory is since then greater than those serving in external operations. On April 29, the President decided to perpetuate Operation Sentinelle in the face of the evolution of the terrorist threat. The operation was reinforced after the November 13 attacks. The Plan Vigipirate relies entirely on existing legislation, and on the powers of the Prime Minister and the security prerogatives of other administrative actors such as prefects and mayors.

On the contrary, on November 13, President Hollande declared the state of emergency appealing to the law n°55-385 of April 3, 1955. This state of exception is however not mentioned in the Constitution of 1958, which refers to the state of siege in article 36 as well as the “emergency powers” of the President in article 16. The state of emergency remains outside the Constitution because it is not linked to foreign war and does not transfer exceptional police powers to the Armed Forces. Moreover, the state of emergency is declared by the Council of Ministers, chaired by the President, and is therefore not directly submitted to parliamentary control. According to the law of 1955, the state of emergency can last 12 days, after which a law must be voted to set its duration. However, on November 16, the President took the floor before the Parliament convened in Congress to propose a constitutional revision. The state of emergency, according to the constitutional project, would be included in article 36. The Conseil d’Etat4 declared on December 11 that only the law could state the duration of the state of emergency. Such a law extending the state of emergency to three months was first voted on by the Parliament on November 21, 2015, with 551 votes in favor, 6 against, and 1 abstention. On February 16, a half-empty Parliament (212 votes in favor, 31 against, and 3 abstentions) voted for an extension of the state of emergency for another three months, until May 26. This law enables the police to conduct house searches without warrants, and place French citizens under house arrest without due process of law if “there are some serious reasons to think [their] behavior is a threat to security and public order.” According to Human Rights Watch, as of February 2, 2016, the government had ordered 3,289 searches and between 350 and 400 house arrests, 303 of which were still in effect. The Paris prosecutor’s office led five investigations into terrorism-related offenses, as a result of the 3,289 searches.5

These mixed results were corroborated by complaints about the impingement on civil liberties implied by the state of emergency. The French human rights ombudsperson, Jacques Toubon, received 73 complaints about the emergency measures and their abuse, and called the government to “come to its senses” on February 26. Under the European Convention on Human Rights (article 15) and the International Covenant on Civil and Political Rights (article 4), states of emergency justify the restriction of certain rights by the government “to the extent strictly required by the exigencies of the situation.”6 The French ombudsperson’s concerns were shared by five UN rights experts, who urged France to protect fundamental freedoms while countering terrorism on January 19. Most experts highlight the lack of clarity and the scope of state of emergency measures, which could lead to severe breaches on freedoms of expression and association, as well as the right to privacy in a context of growing Islamophobia fueled by populist rhetoric.

The scope of these emergency powers is linked to their origins. The last time a nationwide state of emergency was declared by the President was after the Algiers putsch of 1961, an attempt to overthrow President De Gaulle and establish a military junta. However, the question as to whether these powers created during Algeria’s War for Independence, a violent conflict characterized by guerilla warfare and the use of torture, are adapted to combatting 21st century hybrid threats remains. The specter of the war between France and the Algerian National Liberation Front (FLN) has indeed greatly influenced the way France fights against terrorism, through the creation of a justice of exception as well as the establishment of a mindset to comprehend political violence.

A Tradition of Justice of Exception

We can trace the first extraordinary court back to the French Revolution and the Reign of Terror, during which the National Convention established a Revolutionary Tribunal in 1793. Its very broad jurisdiction enabling it to judge any “counter-revolutionary enterprise” as well as “attacks against liberty, equality, unity, indivisible of the republic, internal and external security of the State” was expanded by the Law of 22 Prairial (or law of the Great Terror) to “punish the enemies of the people.”

Under the Fifth Republic the Parliament passed the laws 63- 22 and 62-23 of January 15, 1963, which created a new extraordinary court aimed at judging the members of the Organisation de l’armée secrète (OAS). This far-right paramilitary organization tried to stop the political process of independence of Algeria by a large-scale terrorist campaign under the motto “Algeria is French and will remain so.” Heavily criticized for its duality (it was composed of three magistrate and two military officers), the lack of transparency of its rulings, and the absence of any provision for appeal, the State Security Court was revoked by the Badinter Reform when the left took power in 1981.7 The distinction between “political” and “common” crimes was then erased, as well as the notion of “crimes against state security,” was replaced by “infringement of the vital interests of the nation” in the 1994 Penal Code. Political justice was de-politicized and exceptional jurisdiction disappeared from the French legal landscape.8 Robert Badinter declared in 1982: “there is no way that there will ever be in my mind a circuit court specialized in the repression of terrorism.”9

However, the State Security Court legalized extraordinary war measures taken in times of peace and created a precedent for common criminal offences to be judged as offences undermining the State’s authority. Some procedures created by the State Security Court outlived it: specialized judges in counter-terrorism, such as Jean-Louis Bruguière and Marc Trévidic, custodies lasting up to six days while limited to 48 hours by the penal code, etc. Most importantly, from 1981 on the de-politicization of political transgressions was rooted in the French punitive system which had far-reaching consequences on the way terrorism is comprehended by the French legal and political systems.

An interesting evolution of the exception in French law is that no new extraordinary court has been created since 1981. Extraordinary measures have instead been integrated into the criminal legal framework.

Law 86-1020 of September 9, 1986, is the first to specifically target terrorist crimes. However, the law did not define terrorism as an independent crime. It was included in a list of thirty-nine offences defined as terrorist if “linked to an individual or common enterprise with the aim of seriously disrupting public order through intimidation or terror.” This introduces major issues in terms of counter-terrorism. First, the vagueness of the definition of a terrorist crime, and second the condemnation of the intention before the crime itself, both allow for an ever-broader and more political targeting of offences.10 This leads to a dual, paradoxical dynamic of de-politicization and singling-out of terrorism in French criminal law.11 The 1986 law also centralized all legal procedures for the fight against terrorism to the Trial Court of Paris and its “fourteenth section,” a central department with a national jurisdiction to judge terrorist crimes, and created a new category of specialized magistrates. Another form of exception integrated into criminal law is the cour d’assises spécialement composée, a circuit court without a jury to avoid strategies of intimidation of the jurors by terrorist groups.12 Parliament indeed passed the law after terrorist attacks in 1985-86, the first wave of Islamic-extremist terrorism in France which paralyzed Paris and against which French authorities seemed powerless.

Another powerful evolution of the law was the introduction of a new penal code in 1994 (articles 450-1 to 450-3), which included law 92-1336 of December 16, 1992. The latter has created a new crime – “conspiracy linked to a terrorist enterprise” – that submits the criminal offence of conspiracy to special rules of judicial proceedings, examination of the case, and verdict. Through this new offence, the reformed Penal Code implements a form of preventive justice matching the aforementioned idea of “precautionary principle,” and therefore including the political component of counter-terrorism into French criminal law.

The External Feature of Terrorism and French Foreign Policy

France traditionally perceives terrorism as an internal threat. Throughout the first three waves of terrorism described by David C. Rapoport, the police and internal security forces under the authority of the Ministry of the Interior mainly led the French counter-terrorist effort, in collaboration with the legal system.13 In opposition to the American tradition of perceiving terrorism as an external threat initiated by foreigners on American territory, it is comprehended in Europe as a societal problem within the realm of domestic security. The evolution of French justice in judging terrorism as a criminal offence corroborates this idea. The mutation of the terrorist threat in the 1970s toward a non-secular political violence coming from abroad and claiming to be a response to French policy in the Middle East initiated a dynamic influencing French counterterrorism: the blurring of the line between domestic and foreign policy.

If Pierre de Bousquet, head of the French domestic intelligence agency (DST),14 declared in 2005 that “[the French] answer is judicial and not military,”15 recent trends in French counterterrorism in addition to political discourse in the past decade bring a new reality to light. In his speech before Congress on November 16 2015, President Hollande declared, “France is at war,” and rapidly linked the attacks to French foreign policy in the Middle East. He then announced that France would intensify its military actions in Syria, before reminding the assembly that France would combat terrorism “wherever States’ survival is threatened,” in Mali, Iraq, Syria. Two days later the aircraft carrier Charles de Gaulle cast off for the Eastern Mediterranean, eventually anchoring off the Syrian coastline.

Even though the French interventions worldwide in the fight against terrorism do not affiliate themselves to a belated form of American war on terror, they do convey an idea of French exceptionalism with a mission civilisatrice.16 This activist foreign policy is answering to a secularist sentiment of duty, as France defends its identity as the “country of freedom, the homeland of Human Rights.”17 The absence of any reference to providence is an important element of distinction with the United States’ exceptionalism, which refers to the idea of the Manifest Destiny of a people “near to the heart of God.”18 Despite these differences in the origins of their active foreign policy undertaken as a means to fight terrorism, both France and the U.S. seem to converge toward a similar understanding of security challenges at play.

While war is being waged abroad, however, it seems like French and American authorities alike tend to apply a reversed Clausewitzian dynamic to domestic security policy. If war is a “political instrument, […] a carrying out of the same by other means,” domestic security policy shows evolution toward an internal and concealed war on the enemy of the interior, the terrorist. “Fourth wave” terrorist organizations are indeed characterized by their moving, de-territorialized features at the age of globalization of (in)security, ISIS being an exception as it displays both the characteristics of a state and of a terrorist nebula.19 In its attempt to provide security to its citizens and to place itself as a symbol in the fight against Islamist fanaticism, France is sacrificing civil liberties on the altar of public safety, threatening social cohesion and impinging on the same human rights of which it claims to be an advocate.

Notes

1 “Global War on Terror”

2 Jonas, H. (1985). The imperative of responsibility: In search of an ethics for the technological age. University of Chicago press.

4 The Conseil d’Etat (or Council of State) is the highest administrative jurisdiction in France and one of the principal guarantees of the rule of law in the country. It has the dual function of a legal adviser to the Government and the supreme court for administrative justice.

7 Robert Badinter, a French criminal lawyer and activist against the death penalty, was appointed Minister of Justice when François Mitterrand was elected President in 1981. Famous for abolishing the death penalty for all crimes in France in 1981, he also passed several laws that reformed the French legal landscape.

11 Ibid.

12 A main cause for this jurisdictional exception is the cancellation of a trial of Action Directe members, a French revolutionary group operating in the 1980s, after the withdrawal of four out of nine jurors upon death threats in December 1986.

13 Rapoport describes four waves of terrorism. First, the “anarchist wave” from the 1880s to the 1920s; followed by the “anti-colonial wave” until the 1960s and decolonization; third, the “new left wing wave” from the 1960s to the 1990s; and finally the present day “religious wave” that began at the end of the 1970s after the Iranian Revolution and the invasion of Afghanistan by the Soviet Union. Rapoport, D. C. (2004). “The four waves of modern terrorism” in Cronin, A. K., & Ludes, J. M. (2004). Attacking terrorism: Elements of a grand strategy. Georgetown University Press.

14 Direction de la Surveillance du Territoire, the French domestic intelligence agency. Pierre de Bousquet was its head between 2002 and 2007. The DST merged with the intelligence service of the French police, the RG or Direction Centrale des Renseignements Généraux, in 2008 to form the DCRI [Direction Centrale du Renseignement Intérieur], called DGSI [Direction Générale de la Sécurité Intérieure] since 2013. This intelligence agency reports directly to the Ministry of the Interior.

18 Kohut, A., & Stokes, B. (2006). America against the world: How we are different and why we are disliked. Macmillan: 114.

Constance Hubert is a French MAIA candidate at the Johns Hopkins SAIS. Currently enrolled in a cooperative degree program with Sciences Po Lille in Strategy, Intelligence and Risk Management, her research interests include counterterrorism in transatlantic cooperation and the security-development nexus in Sub- Saharan Africa.